Note-taking by jurors, similar to permitting jurors to ask questions, once was generally discouraged but it is now becoming widely accepted. The arguments against note-taking are that the best note-takers, or perhaps the only note-taker, may dominate jury deliberations. Some critics assert that jurors will attach too much significance to their notes, merely because there is a writing, and attach too little significance to their independent memory. The opponents argue that the jurors who generally are not experienced in note-taking may accentuate irrelevances in their notes and ignore substantial issues or evidence. Also, note-taking jurors may not pay sufficient attention to the witnesses’ on-the-stand demeanor and behavior, which is very important in assessing credibility.

Many courts have concluded that these concerns can be overcome with proper instructions. The 3rd U.S. Circuit Court of Appeals in U.S. v. Maclean , a 1978 opinion, held that the decision to permit jurors to take notes is within the sound discretion of the trial judge if the jury is instructed on the proper use of the notes. Judge A. Leon Higginbotham, writing for the court, concluded that the benefits of note-taking, despite arguments to the contrary, are substantial enough to allow the trial judges to decide whether note-taking should be permitted. Higginbotham noted that the value of note-taking will vary depending upon the complexity and quantitative nature of each trial.

The ABA Principles for Juries and Jury Trials states “[in regard to note-taking by jurors] … there is abundant evidence that individuals tend to be better able to recall events and testimony if they have taken notes at that time; the very process of writing things down helps encode the events in one’s memory.”

Experienced trial lawyers who have participated in trials where the jurors took notes point out the very practical advantages of note taking by jurors. John Pease, an assistant U.S. attorney who prosecuted the lengthy criminal case against former state Sen. Vincent J. Fumo, said that the Fumo trial lasted five months, with more than 100 witnesses and six days of jury deliberation. Pease said the jurors made no request to have any of the trial testimony read back to them. Pease said note-taking is invaluable in a long trial. The note-taking keeps the jury focused, he said.

The model instructions recommended by the various courts all advise similar procedures. In the 3rd Circuit Model Civil Jury Instructions, Preliminary Instruction Number 1.9, the trial judge instructs the jurors that note-taking is permitted but not required. The jurors are told the notes are for the purpose of refreshing the individual juror’s memory. The jurors are warned that they must determine credibility of the witnesses, so they must observe their demeanor and appearance. The jurors are not to use their notes as authority to persuade other jurors. On this point, for example, a district court judge in the 9th Circuit informed the jurors, “You (juror) can’t for instance, pull them [the notes] on other jurors and say, ‘See I have a note of this.’”

Under the 3rd Circuit Model Civil Jury Instructions, the jurors are not permitted to take the notes away from the court. At the end of each day the notes are left in the jury room. At the conclusion of the case a court officer will collect the notes and destroy them. Although these instructions are labeled civil jury instructions there is no difference in their use for criminal trials, as demonstrated by the jury note-taking in the Fumo trial, described above.

Magistrate Judge Jacob Hart has short, clean-cut instructions regarding note-taking. When his clerk hands out the notebooks to the jurors, Hart tells the jury in simple terms: “You may use the notebook whenever you wish. You may decide not to use it all. It’s your choice. You may not show your notebook to any other juror, nor may you read any of your notes to them, until you begin deliberating. You may not take the notebook home at night. My deputy will collect them at the end of each day, and give them back the next day.”

Hart does not give out the notebooks until testimony begins. The jurors do not have them during opening arguments.

Pennsylvania Rules of Civil and Criminal Procedure permit jurors to take notes whenever a jury trial is expected to last for more than two days. The court, in its discretion, may permit jurors to take notes when the jury trial is not expected to last for more than two days. The Pennsylvania rules require the court to provide materials suitable for note-taking. The Pennsylvania rules also provide a standard jury instruction regarding the proper use of notes by jurors.

Tom Kline, who has an extensive litigation practice in the Pennsylvania courts, has had the opportunity to observe the system where note-taking is openly encouraged in all trial courts. Kline said, “I find myself looking occasionally to see if a point I made or my opponent has made gets written down and by whom.” Kline said sometimes a jury has one or two “designated” note-takers and the rest do not take any notes. Kline said that his overall impression is that note-taking is a neutral phenomenon, and not really dispositive in deliberation. Among local trial lawyers, Kline said he has never heard of a juror being influenced by someone who took notes.

The Practices and Procedures filed by the Eastern District court judges and magistrate judges indicates that a vast majority of the jurists permit note-taking by jurors, with some variations and limitations.

Judge Anita B. Brody decides whether note-taking will be permitted on a case-by-case basis, and she will accept requests from counsel. Brody has told this writer that in long cases she informs the jury sua sponte of their right to take notes. Judge John R. Padova also informs the jurors sua sponte of their right to take notes. Judge James Knoll Gardner does not usually permit note taking, but in complicated or lengthy cases, or at the request of counsel, will permit note-taking in appropriate circumstances. Judge J. Curtis Joyner permits note-taking in extremely complicated cases. Judge Gene E.K. Pratter decides whether to permit jurors to take notes on an ad hoc basis. Pratter generally permits note-taking. Magistrate Judge M. Faith Angell generally discourages note-taking by jurors, but has permitted it in appropriate cases. Judge Louis H. Pollak on his own motion advises jurors that they are entitled to take notes.

Most of the Policies and Procedures of district court judges and magistrate judges who permit juror note-taking do not describe their practices in any detail. Counsel should be prepared to ask the court under what circumstances the jurors may take notes, if the court will advise the jurors that they may take notes sua sponte, if a motion by a party is necessary and if an objection by a party is sufficient to prevent the practice.

A trial counsel in federal court who is opposed to juror note-taking should realize that he or she is most often swimming against the tide in most courtrooms. In support of counsel’s opposition to note-taking, he or she should offer 3rd Circuit Model Civil Jury Instructions Number 1.9, Option 2, which instructs the jurors they may not take notes, and gives them the reasons for the prohibition. In most instances the courts will permit the note-taking despite the objection by counsel. Counsel would be best served by ensuring the proper instructions are given, and to ensure the jurors follow them. Counsel should request that jurors be instructed that they are not to take notes during opening or closing arguments. Failure to follow the note-taking and note-keeping instructions are grounds for removal of a juror. The 7th Circuit upheld a district judge’s removal of a juror who took his notes from the courtroom.

Jury note-taking is one of those practices that will soon be taken for granted and the often cited objections will be forgotten. Aside from an occasional glitch when a juror does not follow instructions, the practice will be regarded as a useful tool in the jury process.

(Space limitations do not permit complete case citations. For a complete list of citations for the article, please contact Peter Vaira at p.vaira@vairariley.com.)

Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of “Eastern District Federal Practice Rules, Annotated” (Gann Law Books). He can be contacted by e-mail at p.vaira@vairariley.com.